Post Brexit, the procedure for enforcing a Spanish judgment in English courts against individuals with assets in or living in England is now more complex.
Perhaps a quicker alternative to enforce the judgment is to commence insolvency proceedings and perhaps, ultimately make the debtor bankrupt. This could lead to a greater and earlier engagement from a debtor as most people will usually want to avoid bankruptcy proceedings.
English courts have jurisdiction to make somebody bankrupt if:
- the debtor’s centre of main interests is in England and Wales.
- the debtor’s centre of main interests is in a member state (other than Denmark) and the debtor has an establishment in England and Wales.
- the debtor is resided in England and Wales or at any time in the period of three years ending on the day in which the petition is presented; the debtor has (i) ordinarily been resident in England and Wales or (ii) has carried on business in England and Wales.
A bankruptcy petition may be brought if a debtor is unable to pay their debts. This can be proven by the creditor serving a statutory demand. If the statutory demand is neither complied with nor set aside within three weeks, the debtor will be deemed to be unable to pay their debts and the creditor will be able to file an application at court petitioning for the debtor’s bankruptcy.
Usually, English courts will want to uphold foreign judgments. So, insolvency proceedings should be treated like any other, providing it is for a sum of money only. The bankruptcy court will not usually look behind the judgment and won’t question the merit of such an order. Therefore, a bankruptcy order will be made based on the foreign judgment with no need to register the foreign judgment or issue a claim in the English courts.
It may be that for creditors seeking to enforce a Spanish judgment in England against individuals, the most effective way of getting a debtor to engage is to serve a statutory demand in the first instance.
For further information on any matters raised in this article or any related queries, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our team will be in touch.